Nonstandard Measures

‘Stay Down’ rules reinforce monopoly and do nothing to put money in working creators’ pockets

Hugh D’Andrade/EFF, CC BY 4.0 (modified)

The U.S. Copyright Office has issued a Notice of Inquiry, seeking comment on whether online services should be legally required to filter all their users’ communications to block copyright infringement, as part of a “Stay Down” system.

The idea is that once a copyright holder notifies a service provider that a certain work can’t be legally posted, the service must filter all their user communications thereafter to ensure that this notice is honored.

I think that creators and creators’ groups should oppose this. Here’s why.

The “standard measures” being discussed are not standard. Indeed, they’re largely found in just two companies: Google (through its Content ID system for YouTube) and Meta/Facebook. There’s a reason only two companies have these filters: They are incredibly expensive. Content ID has cost $100,000,000 and counting (and it only does a tiny fraction of what is contemplated in the proposed rule).

That effectively cements Googbook as the permanent rulers of the internet, since they are the only two social media companies that can afford this stuff.

A nearly identical proposal to this one — Article 13 of the Copyright Directive, since renumbered to Article 17 — went through the EU Parliament in 2019, and both Facebook and YouTube came out in favor of it. They understand that this is a small price to pay for permanently excluding all competitors from the internet.

(It’s worth noting that actually implementing Article 17 with automated filters is likely a violation of both the e-Commerce Directive and the GDPR, both of which ban automated judgements of user communications without explicit opt-in and consent, and there’s every chance that Article 17 will not survive a constitutional challenge in the European Court of Justice.)

Now, some people may be thinking, why should I care if Googbook get to take over the internet, so long as they’re forced to police my copyrights?

I think those people are going to be very disappointed, for three reasons:

1. Filters don’t work;